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2017 DIGILAW 178 (CAL)

Aminul Hoque v. State of West Bengal

2017-02-15

BISWANATH SOMADDER, SANKAR ACHARYYA

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JUDGMENT : Biswanath Somadder, J. 1. The appeal is treated as on day’s list and is taken up for consideration along with the application for stay. 2. None appears in support of the instant appeal or the application for stay even at the time of second call, although the learned advocate representing the State respondents is present. 3. Learned advocate for the State draws our attention to the impugned order dated 31st August, 2016, passed by the learned Single Judge in W. P. 32185 (W) of 2014 (Aminul Hoque vs. The State of West Bengal & Ors.) and submits that even a plain reading of the same will demonstrate that the order has been passed with cogent and justifiable reasons and it does not warrant any interference. 4. The records reveal that the writ petitioner has preferred the instant appeal. The impugned order dated 31st August, 2016, reads as follows: “Let the affidavit of service filed in Court today be kept with the record. In spite of notice, none appears on behalf of any of the respondents to oppose this application. 5. The petitioner who has been working as ‘Tax Collector’ of the concerned Gram Panchayat applied for the post of Panchayat Karmee in the unreserved category. The petitioner figured as serial No. 14 out of 14 candidates empanelled for the unreserved category. The petitioner states that he belongs to the OBC category but there was no reservation for the same in the advertisement. On the contrary, three persons belonging to the Scheduled Caste and Scheduled Tribe categories respectively have been empanelled as serial No. 5, 6 and 7 in the unreserved category. The petitioner alleges that if the authorities had properly followed the 100 point roster, there could have been six vacancies for candidates belonging to OBC category. 6. Such a statement on the face of it is not acceptable for two reasons. First, the advertisement did not make any provision for any OBC category. The petitioner appeared at the examination with his eyes open as an unreserved candidate and after failing to secure the required marks to be obtained for the unreserved category, he couldn’t turn around and say that the entire selection process was wrong. The law on the point is very well settled. The petitioner appeared at the examination with his eyes open as an unreserved candidate and after failing to secure the required marks to be obtained for the unreserved category, he couldn’t turn around and say that the entire selection process was wrong. The law on the point is very well settled. A person who appears at an examination cannot be allowed to sit on the fence and then allege that the authorities had erred in not following the law correctly, which they were required to follow. If he was aggrieved, he should have raised the objection before appearing at the examination as unreserved category candidate. 7. In such view of it, the petitioner is estopped from raising this which he seeks now. Moreover, even if there is any vacancy belonging to OBC category, the petitioner cannot compel the authorities to fill up the posts belonging to the same. Whether any post or category of post to be filled up is a discretion which lies exclusively with the employer. The petitioner cannot invoke the writ jurisdiction of the Court to ask the employer to advertise the vacancies, even if they exist belonging to a certain category. To accede to such prayer will be going against the basic principles of service jurisprudence. 8. I find no merit in the writ petition and the same is hereby dismissed. 9. There shall be no order as to costs.” 10. As rightly pointed out by the learned advocate appearing on behalf of the State, the order is supported with cogent and justifiable reasons. In a Intra-Court Mandamus Appeal, unless palpable infirmities or perversities are noticed, no interference is warranted in respect of an order passed by the writ Court, more so, if the order is supported with cogent and justifiable reasons. 11. Now comes a question as to whether we can proceed to dispose of the instant appeal and the connected application on its merit in the absence of the appellant coming forward to prosecute his matter. 12. It is evident from the facts of the case that the writ Court refused to exercise its extraordinary high prerogative jurisdiction under Article 226 of the Constitution of India and pass such mandatory orders as prayed for by the writ petitioner. 12. It is evident from the facts of the case that the writ Court refused to exercise its extraordinary high prerogative jurisdiction under Article 226 of the Constitution of India and pass such mandatory orders as prayed for by the writ petitioner. In such a factual backdrop, the writ petitioner preferred the instant appeal along with the application for stay, but does not come forward to prosecute his matter when called, more than once. The Courts – whenever exercising its extraordinary high prerogative jurisdiction under Article 226 of the Constitution of India – are not shackled by the procedural rigours of the Code of Civil Procedure and only the principles analogous thereto applies – that too – in a limited manner. For the sake of rendering effective justice, a Constitutional Court can, while exercising its extraordinary high prerogative jurisdiction, proceed to dismiss or dispose of a writ petition or an appeal preferred there from on its merit, even in the absence of a party coming forward to prosecute the matter, provided of course, the order of dismissal or disposal – as the case may be – is supported with cogent and justifiable reasons. In such cases, the constraints and compulsions faced by an ordinary civil Court – shackled by the procedural laws while exercising its substantive jurisdiction – do not fetter or bind a Constitutional Court exercising its extraordinary high prerogative jurisdiction, which is essentially discretionary in nature. In this context, one may take notice of the observations contained in a judgment rendered by a Division Bench of this Court on 28th November, 2016 in FMA 914 of 2011 (Rajendra Nath Mukherjee vs. The Burdwan Municipality & Ors.). 13. In the instant case, for reasons stated above, we do not find any merit in the appeal and we are of the view that justice was effectively done by the writ Court while proceeding to dismiss the writ petition in terms of the order impugned. 14. In such circumstances, the appeal and the application for stay are liable to be dismissed and stand accordingly dismissed. 15. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.